R v Matthews

remarks on sentence 1On 2 April 2013 the offender, Adam James Matthews, pleaded not guilty on indictment to a charge that on 22 February 2011 he murdered Scott Miller. The offender pleaded not guilty, a jury was duly empanelled and the trial proceeded. On 16 April the jury returned a verdict of guilty of murder. The offender now comes to be sentenced for that offence. 2The significant events leading up to the death of Scott Miller occurred on the early evening of Saturday 19 February 2011. A fight took place between the offender and Mr Miller in the vicinity of Taylor Square, Sydney, which culminated in the offender punching Mr Miller heavily in the face or head. Mr Miller fell back and hit his head on the iron railing of a pedestrian fence before falling to the ground. Unbeknown to any one, including Mr Miller himself, he had an aneurism in his brain, which burst upon one of these impacts, probably the first. This caused an immediate and severe brain haemorrhage. He was taken to St Vincent's Hospital, where he was placed on life support. The support was withdrawn on 22 February, and Mr Miller died shortly afterwards. 3A considerable amount of evidence at the trial came from witnesses who had observed at least part of the conflict between the offender and Mr Miller. Given that this confrontation took place in a well-frequented public area, there was no shortage of eyewitnesses. Thirteen people described their observations of the relevant events. In addition the offender himself gave evidence. As not infrequently happens in relation to events which happen quickly and unexpectedly, there were significant discrepancies between many of these accounts. Accordingly, the starting point of the sentencing process must be to determine what was most likely course of events. In doing so, I must, of course, have regard to the jury's verdict. 4It is therefore appropriate at the outset to mention the significant factual implications which arise from that verdict. 5There were three principal bases upon which the jury might have found the offender not guilty, or not guilty of murder but guilty of manslaughter. They were, first, that he did not intend to kill or inflict grievous bodily harm upon Mr Miller; second, that the fatal blow was inflicted in self defence, or alternatively that it was excessive self defence. The partial defence of substantial impairment was also raised, but the jury's finding on that issue does not affect the factual substratum of the case. 6I turn now to discuss the events of 19 February 2011. 7By way of background, both Mr Miller and the offender were much the same age - about 37 years old at that time. Both were very fit, having made a point of maintaining their physical fitness. They were acquainted with each other, as they had a number of mutual friends, and they apparently frequented the same drinking spots. On the other hand, there seems to have been an underlying tension between them. The evening before the killing an incident took place at the Courthouse Hotel at Taylor Square. This was described by Mr Reichel, the manager of the hotel, who was present at the time. He described Mr Miller as a person who "had issues with money", having previously been a problem gambler. On this evening, the offender was openly displaying a large amount of cash. Mr Miller said to him: "Stop throwing it around. I don't need to see it." The offender responded: "Mind your own business. I can do what I want." The incident ended there, but it seems to have left an impression on both of them. 8On 19 February the offender went to the Courthouse Hotel at about 8.30 or 9.00 am. He was joined an hour or so later by Jayson Bell. He left the hotel later that morning in order to organise himself and take his son for lunch at Chinatown. He estimated that he would have drunk three or four schooners of beer during the course of the morning. After lunching with his son, he returned to the hotel, at about 2.00 pm, and remained there until 6.30 pm. During that time, he said, he was again talking to Jayson Bell. He was also gambling on the horses, and. would have consumed six to eight schooners of full strength beer. He described himself as "drunk, but not overly drunk". At 6.30 pm Mr Bell told him that he was going home for a meal, and the offender also decided to leave and go to his own home. 9Mr Miller, it seems, came to the Courthouse Hotel earlier that afternoon. He was sitting in the courtyard area at the front of the hotel when Mr. Bell and the offender passed him, on their way out. Mr. Miller and Mr. Bell were close friends, and lived in the same apartment block in Surry Hills. Mr Bell told him that he was going home, and suggested that he come too. Mr Bell and the offender then continued to walk south along the pedestrian extension of Bourke Street, until they were near the front of Kinsella's Hotel. At about that point Mr Miller came up to the offender and, according to Mr. Bell, said words to the effect of: "What is your problem? What have I done? I've done nothing to you." He then moved a short distance away. The offender said to Mr Bell: "I don't like this bloke." 10 I should say here that both Mr Bell and the offender gave almost identical accounts of this conversation, so I can safely assume its accuracy. From that point on, however the eyewitness accounts vary considerably. 11There are a few basic facts which are beyond controversy. First, that shortly after the verbal confrontation described by Mr Bell, a physical fight started between the two men, with punches being thrown on both sides. During the course of the fight, they moved from their initial location near the front of Kinsella's Hotel, east towards Flinders Street, and then south, along the side of a building known as "T2". It was here that the final, fatal blow was struck by the offender. After Mr Miller was lying on the ground, there are accounts of the offender stomping on his head, or on the upper part of his body, up to six times. I will be returning to discuss this later. 12The most damning evidence against the offender came from the first eyewitness to give evidence, Anthony Whiting. He described the offender as the complete aggressor in the confrontation, saying that the fight started with the offender punching Mr Miller several times in the head. Mr Miller then punched the offender once, in retaliation, sending the offender to the ground. Mr Miller then started to walk off, along the side of the T2 building. The offender launched himself up from the ground and ran after Mr Miller, punching him three or four times on the side and back of his head. He was saying: "I'm going to kill you." Mr Miller fell back against the pedestrian railing and then to the ground. When he was on the ground the offender stomped on his head on about six occasions. 13Mr Whiting's evidence potentially provided very powerful support for the Crown case. However there were a number of respects in which his evidence was distinctly less than satisfactory. He had previously given accounts which were inconsistent with this version, sometimes on highly significant matters. He had, for example, said in his police statement, that the final punches were inflicted when the offender was in front of Mr Miller, rather than coming from behind, as was his evidence at the trial. Moreover, he consistently denied that the two men were trading punches immediately before the fatal blow was inflicted, saying that the only blow struck by Mr. Miller was the punch which sent the offender to the ground. In this respect, Mr. Miller's account was at odds with the great majority of other eye-witnesses, many of whom knew neither of the protagonists, and can therefore be assumed to have been entirely impartial in their descriptions of the events. These witnesses consistently described the two men as swapping punches not far from the place where the final blow was inflicted. Indeed this is also shown on a CCTV film which was tendered by the Crown. Finally, Mr Whiting's account of the offender stomping on Mr Miller's head six times was clearly inconsistent with the injuries which the post-mortem examination showed that Mr Miller had sustained during the course of this confrontation. 14Mr Whiting had been a close friend of Mr Miller's, and in the circumstances I can only assume that he was colouring his evidence in order to paint his friend in the most favourable light, and the offender as the sole and unprovoked aggressor. 15One portion of Mr Whiting's account was supported by the offender's evidence, namely that a punch inflicted by Mr Miller sent the offender to the ground. This was also described by another witness, Wayne Farmer, and I am inclined to accept that it did occur, notwithstanding that it was apparently not observed by other witnesses. This event might well have fuelled the offender's anger, and to some extent explained what happened later. However it is the events immediately preceding the inflicting of the fatal blow that are likely to be of greater importance in the sentencing process. In this regard, I do not accept the evidence of Mr Whiting that the offender came up from behind Mr Miller and struck him on the head. It is inconsistent with the majority of the evidence, which had the two men trading punches until at least very shortly before the fatal blow was struck. 16At this point it is necessary to turn to the implications of the jury's verdict. The jury's rejection of the defence of self-defence presumably means that the fatal blow cannot have been inflicted during the course of the continuing fight between the two men. Indeed, the Crown submitted on sentence that Mr Miller was walking away when this blow was struck, roughly as described by Mr Whiting. In this regard, the Crown Prosecutor referred me to a portion of the CCTV footage which showed the two men on the pavement in Flinders Street, close to the front of the T2 building. At first they were fighting, then they moved away from each other. At the last view of them, Mr Miller had his hands down by his side, facing away from the roadway, whereas the offender was still adopting a threatening stance. The Crown submitted that Mr Miller's final movements showed that he was starting to walk away. However I do not consider that the footage supports this proposition. I have looked at it many times during the sentencing process. The camera was to the north of the two men, presumably in Oxford Street. When the camera left the two men, Mr Miller was standing in the middle of the footpath, with his back to the roadway and his right side to the camera. The offender was approximately a metre away, facing the camera from slightly further south in the street, and closer to the side of the building. As indicated, he was in an aggressive stance. I would have been inclined to accept the Crown's submission that Mr Miller was starting to walk away except for one vital fact, which is this. The point at which both of the men were standing on the footpath when the camera left them was to the north of the point at which, on all the evidence, the fatal blow was struck. In other words, going from north to south we have Mr Miller, the offender, and last, the point at which Mr Miller fell. Had Mr Miller been walking away from the offender, who was to the south of him, one would have expected him to have walked north, towards Oxford Street. But he must have gone in the opposite direction, which meant that he was walking either towards or past the offender. This is consistent with some of the eyewitnesses, who said that they were facing each other when the offender landed the final punch. Certainly the CCTV footage showed that Mr Miller had his arms down, and I accept that he was no longer posing an active threat to the offender at the time of the fatal blow. 17The jury's verdict means that the offender must have intended either to kill Mr Miller or to really seriously injure him. I do not consider that he intended to kill him. In this respect, I do not accept Mr Whiting's evidence that the offender said "I'm going to kill you" during the course of this confrontation. No other witnesses gave evidence to similar effect. Nor could an intention to kill be inferred from the offender's actions. It is apparent from the evidence of Dr Wills that the punch which caused the fatal injury would not have killed Mr Miller had it not been for the aneurism, which nobody, including Mr Miller, knew about. The offender bears legal responsibility for the death which followed, but it is a highly significant mitigating feature that, without that peculiar vulnerability, it is probable that Mr Miller would have suffered no permanent injuries at all as a result of the offender's actions at that stage. In this regard, the post mortem examination showed that, apart from the effects of the brain haemorrhage, the injuries suffered by Mr Miller consisted of three areas of facial bruising, consistent with the application of blunt force, as well as bruising on the upper limbs, particularly the hands and fingers. This latter finding was, of course, consistent with punches having been inflicted by Mr Miller. 18I turn to the evidence about the offender stomping on Mr Miller's head after the latter had fallen to the ground. The medical evidence indicates that the aneurism must have burst by then, so the fatal injury had already been caused. Nevertheless, it was a highly relevant matter relating to the offender's intention at the time he inflicted the fatal punch only moments before. There is ample evidence that the offender did stomp on Mr Miller's head, or possibly his upper body. Indeed, the offender himself conceded that he stomped once on his upper body. He said that he did it to make sure that Mr Miller stayed down, as the latter wanted to get up and continue bashing him. This was hardly a convincing explanation in the circumstances. On all accounts, Mr Miller was already displaying alarming physical signs of his impending death. 19The post-mortem medical evidence indicates that, if there had been any stomps to Mr Miller's head, they were unlikely to have been full force ones. Dr Wills said that the evidence was not consistent with a sustained assault with forceful kicks to the head. In the end, I must conclude that there was probably more than one stomp - possibly two or three - to Mr Miller's head or upper body, but they were not of great ferocity. Obviously this is a relevant matter on sentence, and operates as an aggravating feature, and I propose to take it into account as such. I do not think it appropriate, however, to give it a great deal of weight, as it is likely that this evidence played a significant role in shaping the jury's verdict, in other words in persuading the jury that the appropriate verdict was murder rather than manslaughter. 20It is relevant here to note that, immediately after stomping on Mr Miller's head or upper body, the offender ran away, down a nearby laneway. By the time the police came, very shortly afterwards, he could not be found. However after learning about Mr Miller's death the offender handed himself into the Sydney Police Centre on 23 February, accompanied by his lawyer. He was charged with Mr Miller's murder, and has been in custody ever since. He declined to answer any questions about the matter. A photograph of his face taken at that time shows at least one apparently deep bruise just below the right side of his mouth. 21In his written submissions, the Crown Prosecutor very fairly conceded that this offence was in the lower range of objective seriousness for murder. This was an entirely appropriate concession, in my view. The offence was a completely spontaneous one, with the offender's violent behaviour undoubtedly having been fuelled by the alcohol he had consumed earlier that day. I will be discussing this aspect later. Considerably more important are the matters I have already mentioned, namely that the offender's intention was not to kill but to really seriously injure Mr Miller, and - most significantly of all - that, without the concealed aneurism Mr Miller would almost certainly not have died. Nor, it appears from Dr Wills' evidence, would he be likely to have suffered any permanent physical injuries as a result of the offender's actions. In other words, the existence of the aneurism almost certainly made the difference between a murder and what might have been, at worst, an assault occasioning grievous bodily harm. 22I turn now to discuss matters relating to the offender personally. He is now 38 years old, having been born on 10 October 1974. On all accounts he had an extremely difficult and disturbed childhood. One of his referees described his home life as "fractured and dysfunctional". His parents separated before he was born, and he never knew his biological father. His mother had an alcohol problem and sometimes abused her young son. The offender told Dr Furst that she used to smack him, whip him and throw plates at him. She ejected him from the home when he was 14 years old. Also at the age of 14 he was sexually abused by an older woman, which was apparently very traumatic for him. From then on he lived in refuges or with friends. He has not seen his mother for over 20 years. He had learning difficulties and behavioural problems at school, and left school at much the same age, when he was in year 8. Since then he has worked in a number of jobs, as a labourer, a general hand for a hotel group, and as a personal trainer. He was on a Newstart allowance at the time of committing this offence. 23The offender has had four reasonably long-term relationships in his life. He had a son from his second relationship, with whom he was very close. Indeed, it was that son with whom he had lunch on the day of this offence. He has had three further children, including two from his current relationship. His current partner has remained supportive of him, and she and their children have had regular contact with him in prison. Late in 2011, when the offender was in custody in relation to this matter, his oldest son, then aged 16, committed suicide. The offender was, on all accounts, completely devastated by this. 24It is probably not surprising, given his disrupted background, that the offender suffered from anxiety symptoms at a relatively young age. He resorted to drugs and alcohol in an endeavour to overcome his anxiety. Between the ages of 14 and 25 he regularly abused cannabis and sometimes other drugs, but he has since stopped taking illegal drugs. Much more significantly in the present context, he commenced binge drinking when he was about 16, and alcohol has been both his refuge and his worst problem ever since. 25In 2001 the offender sustained facial injuries and a punctured lung when he was the victim of an attempted robbery in Woolloomooloo. He reported anxiety symptoms, including nightmares, following this attack. These symptoms were further exacerbated when, in 2007, he suffered severe injuries as a result of being stabbed in a Surry Hills hotel. Two psychiatrists gave evidence at the trial, Dr Richard Furst and Dr Olaf Nielssen. Both expressed the opinion that, as a result of these events, the offender was suffering from post-traumatic stress disorder at the time of this offence. This evidence was relevant to the partial defence of substantial impairment which had been raised by the defence. The jury's verdict shows that it rejected this defence. However, given that both psychiatrists agreed on the diagnosis of post traumatic stress disorder which amounted to an abnormality of mind, I can only assume that the jury's rejection of the defence was because they were unable to find that this condition had the effects upon the offender as required by s 23A Crimes Act 1900. Nevertheless, as Mr Steel, who appeared for the offender, pointed out, there is ample authority that the existence of the disorder can be a relevant matter on sentence. In the present case it is, in my view, a highly relevant matter, as it had a direct bearing on his behaviour during this offence, albeit not in the respects referred to in s 23A. The clinical psychologist, Dr Mark Milic, whose report was tendered on sentence, also considered that the offender was suffering from post-traumatic stress disorder. He expressed the view that this disorder, together with the offender's alcohol dependence, were major contributing factors to the offence. The alcohol dependence was itself, at least in part, a product of the stress disorder, as the offender used alcohol to dampen his anxiety symptoms. Together they increased the offender's risk of impulsive aggression. 26At the time of this offence the offender was subject to a nine month intensive corrections order, imposed on 2 December 2010 in relation to an offence of using an offensive weapon with intent to commit an indictable offence. One of the conditions of this order was that he not consume alcohol during its currency. He was in clear breach of this order, and this is an aggravating feature on sentence. 27This takes me to a consideration of the offender's criminal history, and it is, to say the least, a very extensive one. It started with an offence of stealing, which was dealt with in the Childrens Court in 1989 when he was only 14 years old. Five further appearances before the Childrens Court were recorded, sometimes for multiple offences, most of them offences of dishonesty. These were followed by numerous convictions in the Local Court, again for offences of dishonesty and also, increasingly, for offences denoting violence, such as assault, assault occasioning actual bodily harm, malicious damage and resist arrest. It must be assumed that, at least at the early stages, these were not extremely serious offences of their kind, because it was not until his seventh appearance before the Local Court, in 1999, that he was first sentenced to imprisonment, which was reduced on appeal to a fixed term of two months. The offences, however, continued unabated. After that first sentence of imprisonment, the offender came before the courts on at least 14 further occasions, sometimes for multiple charges, which increasingly involved crimes of violence. He has been sentenced to five further terms of imprisonment, the longest being for 15 months with a non parole period of nine months. In all, he had spent approximately two years in prison before the commission of this offence. This lengthy criminal record is to be taken into account as an aggravating factor under s 21A Sentencing Procedure Act 1999. 28It is apparent that the offender's main problems with the criminal law lie in his alcohol abuse and his difficulties with anger management. The first of these is by far the most important, as the offender's capacity to control his anger is directly and negatively linked with the amount of alcohol he has consumed. Both these problems no doubt had their roots in his disrupted childhood, and were compounded by his post-traumatic stress disorder. On the face of it, therefore, one would have to have serious reservations about his prospects of rehabilitation. This, of course, is a major consideration on sentence. Mr Steel submitted that there were good prospects of rehabilitation. The Crown disputed this, given that the offender's criminal behaviour has almost invariably been associated with his excessive drinking. In this regard, the Crown Prosecutor pointed out that the offender has, on a number of previous occasions, said that he realised that he had to stop drinking, but he has thus far been unable to do so. This is certainly the case, but some ground for optimism is shown in the very recent reports of Dr Milic and of Christine Bridekirk, the Services and Programs Officer at Long Bay Correctional Centre. The offender is not an unintelligent man, and he clearly realises that his alcohol abuse is at the core of his problems. Thus far his enforced periods of abstinence, arising from his incarceration, have been relatively short. On this occasion, given the nature of this offence, he will inevitably be serving a long term of imprisonment. It is very much to be hoped that he will be given the opportunity, whilst in prison, to participate in programs which will assist him in resolving his alcohol-related problems and will also address the underlying issues which have fuelled his alcohol addiction over the years. In this regard, I would request that these comments be brought to the attention of the prison authorities. With appropriate support it is to be hoped that offender can master his alcohol dependence and become a contributing member of the community. It will require a great deal of assistance, support and encouragement from others, and commitment and strength from him. 29The offender clearly has a number of supportive friends who regard him highly, notwithstanding his lengthy history of conflict with the law. Three references were tendered on sentence from people who have known him from childhood, and who speak glowingly of the offender's wit, humour, intelligence, and his loyalty to his friends. 30I accept that the offender has shown genuine remorse for this offence. This has been compounded by the death of his own son. He told Dr Milic that he felt deeply sorry for Mr Miller's family. He said: "I am not asking for forgiveness. I'm asking that they believe my apology is sincere. I know what they are going through because I have lost my son." 31The Crown Prosecutor expressed the view that general deterrence was an important factor to be taken into account on sentence. However I do not regard it as a significant matter in the unusual circumstances of this case. The mere fact that something that started as a street fight could have had these horrific consequences, with one man dead and the other convicted of murder, is ample deterrence in itself, in my opinion. The offender will in any event be serving a lengthy term of imprisonment, which should operate as more than adequate deterrence in the circumstances. 32Extremely moving victim impact statements were given by Mr Miller's parents, who were devastated by their son's sudden and totally unexpected death. They have been following these proceedings from the outset. I would like to convey my own and the Court's sincere condolences for their tragic loss. They will very possibly think that the sentence I am about to impose is entirely inadequate, having regard to the extent of their loss. But in truth no sentence this Court could impose could ever compensate them for the loss of their much loved son. I hope that they understand that the purposes of sentencing cannot include a component for the grief and suffering of the loved ones of the deceased victim. 33It goes without saying that the offence of murder, involving the taking of a human life, is the most serious offence in the criminal calendar. The maximum sentence is life imprisonment, and the standard non-parole period is imprisonment for 20 years. Since the High Court judgment in Muldrock v The Queen (2011) 244 CLR 120 the standard non-parole period has been treated as a guidepost rather than as a necessary starting point. In the present case, the extremely unusual features of the offence indicate that the non-parole period should be significantly below the standard one. 34The Crown handed up a list of sentences imposed in so-called comparable cases. It goes without saying, particularly with the offence of murder, that each case will be unique, and will need to be dealt with according to its own particular circumstances. Nevertheless, the list operates as a very useful guide. 35Mr Steel submitted that special circumstances exist which justify a departure from the statutory ratio between the non-parole period and the balance of sentence. At first the Crown prosecutor disputed this proposition, but he later conceded that special circumstances probably do exist. This was an appropriate concession, in my view. The offender will need a great deal of assistance, support and supervision on his release from custody, and this is likely to last for a considerable period of time. Nevertheless, given the overall length of his sentence, it will not be a significantly longer period than provided by the legislation. 36The offender has been in custody since 23 February 2011. However, until 19 September 2011 his custody related to his breach of the intensive corrections order made on 2 December 2010. The breach in question was not the present offence, but the fact that the offender had been consuming alcohol. In the circumstances, I think it appropriate that the sentence for the present offence should commence on 19 September 2011. 37Adam James Mathews, for the murder of Scott Miller I sentence you to imprisonment to be served by way of a non-parole period of 11 years to commence on 19 September 2011, and to expire on 18 September 2022. The balance of sentence will be five years, commencing on 19 September 2022 and expiring on 18 September 2027, making a total sentence of 16 years. The earliest date on which you will be eligible for release on parole will be 18 September 2022.